“Bad actors” refers to lawyers who behave badly, either by engaging in inappropriate conduct (sexual or otherwise) or harassing others on the job. Yet they progress in their legal careers, sometimes earning bigger and better titles and compensation packages, while continuing to behave badly in new settings.
What can be done about them? Do recruiters and other attorneys have a duty to reveal information about them—even if it’s secondhand? Is there a risk in doing so? What about a #MeToo-type registry in the legal profession?
The situation
I received an email from a female partner “seriously questioning why certain white male partners can end up getting a soft landing at major BigLaw firms after having been at least three times ousted from other BigLaw firms.”
“My question is, should I have spoken up about these sh**ty men – or told recruiters about them – so that maybe they did not get a soft landing? Is it too late to do so? Or am I being idealistic and things likely would not change even with a disclosure? Historically, I never had the power to make that happen, even as a C-suite officer in a firm. I remember that I really appreciated it when you told me about a horrible candidate back in my [BigLaw] CRO days. I raised the issue with management for more inquiry (never citing my source) and they did nothing about it. (Fortunately, that guy ended up not joining the firm but it wasn’t my inquiry that did it.) But that was over a decade ago. Are things different in 2025?
“I’m wondering if I should do more to stop the cycle of these people (a) earning a MONSTROUSLY good living, (b) subjecting other people to the same BS and (c) never learning the lesson. I was only peripherally affected by this particular guy’s BS, but I definitely witnessed it and it did have some effect on my advancement back in the day .
“Should we be encouraging women to speak up and create a network of this information? Or will it just be ignored because he will make a lot of money and so will his recruiter?”
Relevant questions on the U-LPQ
Virtually all law firms require lateral partner candidates to fill out a questionnaire in the interview and vetting process which include questions intended to ferret out possible trouble. The NALSC (National Association of Legal Search Consultants) Universal Lateral Partner Questionnaire poses these questions which are similar to those found in most law firm LPQ’s:
| Have you ever been the subject of a legal malpractice claim, breach of trust claim, employment discrimination claim, employee discrimination grievance, employee discrimination investigation (including harassment or retaliation)? |
| ☐Yes ☐No
If yes, please describe: |
| Have you ever been the subject of an investigation, grievance, or complaint with any state or federal bar or otherwise subjected to any discipline by a state or federal bar? |
| ☐Yes ☐No
If yes, please describe: |
But is self-disclosure by candidates sufficient? Hilary Gerzhoy, ethics counsel at HWG LLP in Washington, DC says, “Most often, if the firm counsels you out, they would have an internal investigation first which would mean that the candidate would need to answer ‘Yes’ to the first question. I imagine that often that question does not get answered truthfully.”
I, also, doubt whether these questions are answered honestly very often by those who, indeed, were investigated because an affirmative answer would tank any future lateral move. Neither would firms that “manage out” an alleged perpetrator of improprieties want the truth public, because they would be embarrassed to have it known that they hired and kept onboard such a lawyer. The separation most likely would be a “mutual” decision with an agreed upon, sanitized narrative.
Red flags
Even without a fully honest answer to those questions on the LPQ, there are often red flags warning of possible danger. A well-credentialed partner who has been at several top firms, moving every few years, often signals one of two things: “discipline” problems or the promised book of business did not materialize. (This post addresses only the first scenario.)
Despite the red flags, why do these lawyers continually get hired? There are several potential reasons: Firms are dazzled by promises of big books of business and a potential boost to the bottom line. Big rainmakers often are powerful and have powerful friends in past, current, and potential future firms who will vouch for them—the Big Boys’ Club. And, often, these partners are charismatic.
Actual cost to a firm of hiring bad actors
While the misbehaving lateral partner may bring an immediate bump to the new firm’s bottom line, there are long term costs for making such a hire, including:
- Reputational – both internal and external;
- Negative/disruptive impact on firm culture;
- Public “loss” of a big rainmaker when that lawyer is asked to leave;
- Possible loss (and their potential contributions to the firm) of other attorneys who were impacted and see the alleged perpetrator remain unscathed; and
- Hiring cost—time spent on recruitment, onboarding, and integration as well as recruiter fees.
What can or should “bystanders” do?
Rule of Professional Conduct 8.3 requires lawyers who know of another lawyer who has violated the Rules of Professional Conduct “that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer” must report them to professional authorities.
Gerzhoy, who advises and litigates on these topics, calls this a “wishy-washy” requirement, however. She says that there is little risk for not reporting because it is difficult to say whether a violation constitutes a “substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer” and failure to report is infrequently a source of discipline. But there is potential risk for those who do report. Reporting lawyers can become a pariah among the powerful alleged perpetrators’ powerful allies, with career consequences.
But lawyers can make an anonymous report to their State Bar’s ethics hotline. The Office of Disciplinary Counsel has a duty to investigate every report. If it’s anonymous, however, there’s little chance of any definitive action without specifics. The complaint should detail the behavior as much as possible with a statement that there is concern that the alleged perpetrator will continue with such behavior in the future even if they already moved to another firm. The subject of the complaint will receive a letter regarding the complaint and the defense most likely will assert that there is no basis for it. The result is that allegations rarely meet the high bar for consequences. Non-anonymous reports have a much higher likelihood of achieving results.
What can/should recruiters do?
Note that many legal recruiters are active members of a state bar and would be subject to the Rules of Professional Conduct as noted above.
Of course, recruiters can decline to represent the candidate. But what if you learn that a client is considering such a candidate submitted through other sources?
Do NALSC members have a duty under the Code of Ethics to pass along any information we have? The relevant portion of the Code reads:
ARTICLE I
Relations With Employers
- Information provided to employers shall be the most accurate information known to the search firm.
- No search firm shall withhold candidate information which the employer would reasonably consider essential to its hiring decision.
In practice, recruiters rarely have first-hand information about a lawyer’s alleged misbehavior. Rather, we hear complaints from others— the lawyers and recruiting professionals who witnessed the behavior. Should we tell potential employers “I cannot corroborate this, but I’ve heard that there was a reason, involving inappropriate conduct, for the candidate’s departures from past firms. I suggest that you vet this candidate carefully?” That is what I did for the email author above.
Is there a chance of being sued for defamation? Truth is a defense. If the allegations are true, the alleged perpetrator likely won’t sue because they won’t want those grievances aired. But there’s always a chance. It’s possible that the alleged bad actor is confident enough that the probable power differential will cause the recruiter to back down and, in the meantime, the search firm will bear the expense of defending a suit.
A “#MeToo”-type registry?
Is it legal or practical for there to be a database or online #MeToo listing for reporting alleged bad actors in the legal community? How would that work? What other steps can we take to stop them from continuing to land cushy jobs and behave badly in their new environments?
Ideas, anyone?
